November 18, 2006

New Glarus Parent Files Request for Summary Judgement On Behalf of Gifted Education in Wisconsin

State gifted education advocate and Madison attorney Todd Palmer recently filed a request for a judicial "summary judgement" in the matter of "Todd Palmer v. The State of Wisconsin Department of Public Instruction and Elizabeth Burmaster." As he explained it to me in layperson's terms, a summary judgment "is a procedure wherein a party (me) asks the judge to render a decision based on the record. I am essentially arguing that the factual issues here are undisputed, therefore the judge can render a decision without a trial. I have every expectation that this motion will decide all relevant issues (one way or the other) and therefore we will avoid a trial. The state (DPI) must respond to my motion on or before 12/1/06." Todd expects a decision from Judge Nowakowski sometime in January, 2007.

This case is about a state agency purposely ignoring statutory mandates that require educational opportunities to be provided to an entire class of underserved and at-risk children -- specifically those labeled as "gifted and talented."

At their core, the issues before this Court are straightforward: Can a state agency ignore a legislative directive to promulgate rules governing this underserved class of children? Alternatively, can a state agency unilaterally transfer this rulemaking responsibility to local units of government in contradiction of a clear legislative directive? The clear answer to both issues is no.

Here, these issues arise in the context of the Wisconsin Department of Public Instruction's ("DPI") failure -- for nearly 20 years -- to promulgate rules which implement and administer the gifted education mandates set forth in Wis. Stat. 118.35(2) and 121.02. In these two statutes, the Legislature clearly directed DPI to:

2) "PROMULGATE RULES to implement and administer" the legislative mandate that each school board "provide access to an appropriate program for pupils identified as gifted or talented." See Wis. Stat. 121.02(1)(t) and (5).

3) "PROMULGATE RULES to implement and administer" an auditing program to ensure that school boards are providing gifted students with access to appropriate programs. See Wis. Stat. 121.02(2) and (5).

To date, DPI has not promulgated rules meeting these directives. Instead, DPI has perpetuated a regulatory environment for nearly two decades whereby Wisconsin's 426 school boards have had: (a) no rules for identifying the gifted children within their district which require specialized services; (b) no rules defining what specialilzed educational services must be provided to these students once identified; and (c) no rules defining how DPI will unilaterally audit school boards to ensure compliance with these gifted education mandates.

In the absence of these rules and DPI's total abdication of its responsibilities, school districts have largely ignored their obligations owed to gifted children and many are openly planning to severely cut or altogether eliminate gifted programs in the future. This is a serious situation. Former State Superintendent of DPI, Herbert Grover, described the status of gifted education in Wisconsin as follows:

Research continues to show that, as a group, gifted and talented children are the most underserved pupils in public schools. Too often, these pupils are ignored, restricted, or underachieving and, if not part of the typical dropout statistics, have become in-school dropouts.

In order to educate yourself about the status of gifted education in Wisconsin, I encourage you to read the entire brief.